At CFLP we deal with English civil law, a combination of statute and case law (judicial decisions) which informs the advice we give clients and the way we approach cases. For many people the English legal system is only one aspect of the laws governing their family life; the other being the laws prescribed by their own religious beliefs and cultural practices.
We thought it would be interesting to have a brief look at how the court treats religious laws and organisations. For this blog we will take a look at Islamic family law. Next week we will take a look at the position for those of the Jewish faith. We must caveat this blog by explaining that we are experts in English law, not the sharia law we discuss below, so please excuse any inadvertent errors.
A recent Panorama programme examined the operation of sharia courts in the United Kingdom from the perspective of women trying to obtain Islamic divorces. These organisations have been set up to dispense advice and judgments according to sharia principles, and claim the power to issue divorce to couples married according to Islamic law. There are around 85 Sharia councils operating in the UK, but there are different schools of Islamic thought so the principles applied in the councils vary widely.
The first thing to point out is that an Islamic marriage celebrated in this country is not generally recognised under English law. Only civil marriages are recognised. To this end some mosques hold licenses to conduct civil weddings. Likewise an Islamic divorce (Talaq if pronounced by the husband, Khul if sought by the wife and granted by an Islamic judge) pronounced in this country is not recognised by English courts. The effect of non-recognition is that a couple married only under Islamic law only will be treated as cohabitants under English law with the resulting limited financial remedies.
In certain very limited circumstances Islamic marriages may be recognised, and two recent cases have looked at exactly that point.
In the case of MA v JA and the Attorney General (2012) the couple made a successful application to have their Islamic ceremony declared valid under English law. Although it did not comply with the requirements of the Marriage Act 1949 (the law setting out what constitutes marriage), the ceremony was held to be “of the kind” contemplated by the legislation, so the judge allowed the Islamic only ceremony to be declared a valid marriage under English law.
The opposite result was decided in the case of El Gamal v Al Maktoum (2011) which featured a member of the ruling family of Dubai. Here an Islamic ceremony was found to have taken place, but at it was done secretly, with no written evidence, and would be unlikely to be recognised as valid in some Muslim countries, the court decided it did not amount to a marriage capable of recognition as such under English law.
Each case will turn on its own facts and a specific application must be made in each case for a declaration.
The position changes for couples married under Islamic law overseas. If an Islamic ceremony is valid in the country in which it took place and in which the couple were domiciled when it was celebrated, an English court will consider it valid. That means a couple with a valid overseas Islamic marriage can apply for divorce in the English court. The court also recognises Islamic divorces which have been validly pronounced overseas. In the case of K v K (2007) the High Court upheld the validity of a Talaq divorce pronounced by the husband in Pakistan even though the wife was not made aware of it. Under Pakistani law the Talaq divorce was valid as it complied with procedural requirements, and it was irrelevant that notice was not given to the wife.
This situation is a strange one because overseas Islamic marriages and divorces are generally recognised by the English courts, but domestic ones are not unless they also fulfil the criteria for a valid marriage imposed under English law. Clearly there is a policy reason for this, in that we cannot have parallel legal systems in this country. The only valid system in respect of marriage and divorce in England is the English civil one, but it can leave people who consider themselves validly married under Islamic law in this country without the financial remedies they would expect from the English legal system.
English law and Sharia law differ markedly on the approach to financial claims following divorce, both capital and income aspects. English courts will give consideration to the cultural background of the couple but will not apply sharia principles to the financial arrangements for a divorcing Muslim couple.
Sharia law also makes provision for children’s arrangements which often conflict with the approach of the English courts. For example, some Islamic schools of thought say all children over the age of seven should be brought up by their father; while other schools say girls should remain with their mothers. Nevertheless, in the English courts a child’s welfare is the paramount consideration when children’s arrangements are being decided, and although cultural factors are important, an English court’s view of the best interests of the children may not necessarily correspond with Islamic principles.
If you have any questions about how the English courts will deal with any religious aspect of your case, please give Adam, Gail, Sue or Simon a call on 01223 443333.
*This blog is written for informational purposes as a free public resource. Nothing in this blog or elsewhere on this website should be construed as legal advice. Although we welcome discussion, please note that CFLP is unable to give legal advice in response to comments left under this article.